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CIRCULAR

CIRCULAR

Guiding the organization and operation of labor arbitration councils

Pursuant to the Government’s Decree No. 133/2007/ND-CP of August 8, 2007, detailing and guiding the implementation of a number of articles of the Law Amending and Supplementing a Number of Articles of the Labor Code regarding the settlement of labor disputes (below referred to as Decree No. 133/2007/ND-CP);

Pursuant to Decree No. 122/2007/ND-CP of July 27, 2007, providing for the list of enterprises banned from strike and the handling of requests of labor collectives at those enterprises (below referred to as Decree No. 122/2007/ND-CP);

Pursuant to the Government’s Decree No. 29/2003/ND-CP of March 31, 2003, defining the functions, tasks, powers and organizational structure of the Ministry of Labor, War Invalids and Social Affairs;

The Ministry of Labor, War Invalids and Social Affairs guides the tasks, powers, organization and operation of Labor Arbitration Councils as follows:

I. TASKS AND POWERS OF LABOR ARBITRATION COUNCILS

1. Tasks of a Labor Arbitration Council

a/ To conciliate interest-related collective labor disputes between labor collectives and employers;

b/ To settle collective labor disputes between labor collectives and employers at enterprises on the list of those banned from strike provided for in Decree No. 122/2007/ND-CP.

2. Powers of a Labor Arbitration Council

a/ To inquire into disputes, meet disputing parties, related persons and witnesses;

b/ To gather documents and evidence, request disputing parties and related persons to supply all documents related to disputes;

c/ To request disputing parties to attend meetings on conciliation or settlement of disputes convened by the Council;

d/ To suggest conciliation solutions to disputing parties for consideration and negotiation;

e/ To make records of successful or unsuccessful conciliation;

f/ To issue decisions on settlement of disputes at enterprises on the list of those banned from strike;

g/ To provide professional guidance on labor dispute conciliation to grassroots conciliation councils and local labor conciliators.

h/ The Council’s secretary is entitled to benefits provided for in Clause 5, Article 11 of Decree No. 133/2007/ND-CP. Other members of the Council working on a part-time basis to conciliate and settle labor disputes, including scrutinizing dossiers and meeting disputing parties to collect documents and evidence, are entitled to allowances equivalent to court session allowances for people’s jurors under the Prime Minister’s Decision No. 241/2006/QD-TTg of October 25, 2006, on court session allowances.

3. Tasks of the chairman of a Labor Arbitration Council

a/ To administer all activities of the Council, preside over meetings on conciliation and settlement of labor disputes;

b/ To assign specific tasks to the Council’s members;

c/ To sign the Council’s records and decisions on settlement of labor disputes;

d/ To sign for promulgation the Council’s operation regulation;

e/ To organize professional training and retraining courses on conciliation and settlement of labor disputes;

f/ To make annual or extraordinary reports on the Council’s operation.

4. Tasks of the secretary of a Labor Arbitration Council

a/ To act as the Council’s standing member to perform administrative and organizational tasks, ensuring the Council’s operation;

b/ To receive dossiers of and inquire into labor disputes;

c/ To gather related evidence and documents;

d/ To prepare for the Council’s meetings;

e/ To carry out procedures for and make records at the Council’s meetings on conciliation or settlement of labor disputes.

5. Tasks of other members of a Labor Arbitration Council

a/ To inquire into collective labor disputes in order to give comments and suggestions on the Council’s conciliation and settlement solutions;

b/ To attend the Council’s meetings on conciliation and settlement of labor disputes;

c/ To perform other tasks assigned by the Council’s chairman.

II. ORGANIZATION OF LABOR ARBITRATION COUNCILS

1. Term of operation of a Labor Arbitration Council

The term of operation of a Labor Arbitration Council is three (3) years under the provisions of Clause 3, Article 164 of the Labor Code.

In addition to meetings to settle labor disputes upon petitions of disputing parties, a Labor Arbitration Council may convene extraordinary meetings at the request of its chairman and biannual and annual meetings to assess its operation results and report thereon to the president of the provincial/municipal People’s Committee and the Ministry of Labor, War Invalids and Social Affairs.

2. Membership of a Labor Arbitration Council

The number of members and composition of a Labor Arbitration Council comply with Clause 4, Article 11 of Decree No. 133/2007/ND-CP. Points d and e, Clause 4, Article 11 of Decree No. 133/2007/ND-CP are guided as follows:

a/ If a member is the representative of a local employer according to Point d, Clause 4, Article 11 of Decree No. 133/2007/ND-CP, that must be a chapter or representative office of the Vietnam Chamber of Commerce and Industry or the provincial-level Union of Cooperatives.

b/ If a member is a lawyer or a person or several members are lawyers or persons experienced in local labor relations, having prestige and a sense of justice as prescribed at Point e, Clause 4, Article 11 of Decree No. 133, 2007/ND-CP, they must be selected by the provincial/municipal Labor, War Invalids and Social Affairs Service and decided by the president of the provincial-level People’s Committee at the recommendation of one of the following agencies and organizations: the provincial/municipal Labor, War Invalids and Social Affairs Service, the Lawyers’ Association, the Labor Confederation, the chapter or representative office of the Vietnam Chamber of Commerce and Industry or the provincial-level Union of Cooperatives;

c/ In addition to official members, the provincial/municipal Labor, War Invalids and Social Affairs Service, the Labor Confederation, the chapter or representative office of the Vietnam Chamber of Commerce and Industry or the provincial-level Union of Cooperatives may each nominate an alternate member for replacement of official members who are absent or must be replaced at the request of disputing parties. The alternate member nominated by the provincial/municipal Labor, War Invalids and Social Affairs Service must be one of its leaders who will replace the Council’s chairman in case of the latter’s absence;

d/ At the proposal of the Council’s chairman, the director of the provincial/municipal Labor, War Invalids and Social Affairs Service shall propose to the president of the provincial-level People’s Committee for consideration and decision the removal of a member from the Council who fails to fulfill the assigned tasks (the removal decision is made according to Form No. 2 attached to this Circular - not printed herein).

3. Establishment of a Labor Arbitration Council

The director of the provincial/municipal Labor, War Invalids and Social Affairs Service shall send written requests to concerned agencies and organizations for nomination of members to the Council.

Based on the list of nominees of agencies and organizations, the director of the provincial/municipal Labor, War Invalids and Social Affairs Service shall propose to the president of the provincial-level People’s Committee for consideration and issuance of a decision on the establishment of the Council (according to Form No. 1 attached to this Circular - not printed herein).

III. PROCEDURES FOR CONCILIATION, SETTLEMENT OF LABOR DISPUTES BY LABOR ARBITRATION COUNCILS

1. Receiving petitions for settlement of labor disputes

The secretary of a Labor Arbitration Council who receives a petition for settlement of a labor dispute shall record that petition in a book, writing down the date of receipt, and scrutinize and gather related evidence and documents. He/she shall suggest conciliation or settlement solutions to the Council within two (2) days after receiving the petition and send to the Council’s members:

a/ A summons to the Council’s meeting;

b/ The petition for settlement of the dispute (according to Form No. 3 attached to this Circular - not printed herein);

c/ Related evidence and documents;

d/ The list of the Council’s members participating in the conciliation or settlement of the dispute as decided by the Council’s chairman.

If either or both of the disputing parties request replacement of a member of the Council as they see that such member cannot ensure objectivity and justice in dispute settlement (he/she is a relative or has personal interests related directly or indirectly to either disputing party), the party(ies) must send to the Council a written request at least three (3) days before the Council’s meeting. The replacement of members at each meeting on conciliation and settlement of a collective labor dispute is decided by the Council’s chairman.

2. Order and procedures for settlement of collective labor disputes by Labor Arbitration Councils for enterprises where strike is allowed

a/ At each meeting of a Labor Arbitration Council, the Council’s secretary shall check the presence of the two disputing parties and their authorized representatives. If the two disputing parties are absent and authorize others to represent them, their written authorizations are required. If one of the disputing parties is absent for a plausible reason, the Council may postpone the meeting. If a disputing party is still absent without a plausible reason after being summoned for the second time after two (2) working days from the date the Council postpones the first meeting, the Council shall still meet and make a record of unsuccessful conciliation to be signed by the present party, the Council’s chairman and secretary.

b/ When the two disputing parties are present, the Council shall conduct the meeting in the following order:

- Declaring the reasons for the meeting;

- Introducing the meeting’s participants;

- The petitioner makes presentation;

- The petitioned makes presentation;

- The Council’s secretary presents evidence and documents it has gathered and puts forth conciliation solutions for members’ comment and agreement on the principle of majority voting by secret ballot;

- The Council’s chairman puts forth conciliation solutions.

c/ In case the disputing parties can conciliate the dispute by themselves or agree on a conciliation solution put forth by the Council, the Council shall make a record of successful conciliation (according to Form No. 4 attached to this Circular - not printed herein) to be signed by the two disputing parties, the Council’s chairman and secretary, and send it to the two disputing parties. The disputing parties must observe agreements in the record of successful conciliation.

d/ In case the two disputing parties disagree with the conciliation solution put forth by the Council or one of them fails to show up without plausible reasons though having been summoned for the second time, the Council shall make a record of unsuccessful conciliation (according to Form No. 4 attached to this Circular - not printed herein), stating opinions of the parties; the record must be signed by the disputing parties, the Council’s chairman and secretary.

The record must be sent to the disputing parties on the working day following the date of its making.

3. Order, procedures for settlement of labor disputes by Labor Arbitration Councils for enterprises on the list of those banned from strike

Within five (5) working days after receiving a petition for settlement of a labor dispute, a Labor Arbitration Council shall organize a meeting to settle that dispute.

a/ The Council shall carry out procedures specified in Clause 1 and at Points a and b, Clause 2, Section III of this Circular.

b/ If the two parties can conciliate the dispute by themselves or agree on a conciliation solution put forth by the Council, the Council shall make a record of successful conciliation and issue a decision on settlement of the labor dispute based on the successful conciliation solution (according to Form No. 5 attached to this Circular - not printed herein).

c/ In case of unsuccessful conciliation, the Council shall make a record thereof and issue a decision on settlement of the labor dispute (according to Form No. 5 attached to this Circular - not printed herein).

d/ The Council’s settlement decision shall be discussed and voted on the principle of majority voting by secret ballot. If more than 50% of votes of the Council’s present members are for the settlement solution, the decision becomes effective.

If either or both of the disputing parties disagree with the Council’s decision, they may request the people’s court to settle the dispute in accordance with law.

The Council’s decision settling a dispute shall be duplicated and sent to the two disputing parties on the working day following the date of its signing.

4. Language used in the process of conciliation and settlement of labor disputes at Labor Arbitration Councils

The language and script used in the course of conciliation and settlement of labor disputes at Labor Arbitration Councils are Vietnamese. If one or both disputing parties cannot use Vietnamese, the employer shall arrange qualified interpreters for dispute conciliation and settlement.

IV. ORGANIZATION OF IMPLEMENTATION

1. This Circular takes effect 15 days after its publication in "CONG BAO."

To annul Circular No. 02/LDTBXH-TT of January 8, 1997, of the Ministry of Labor, War Invalids and Social Affairs, guiding the implementation of the Prime Minister’s Decision No. 774/TTg of October 8, 1996, on the establishment of provincial-level Labor Arbitration Councils.

2. Provincial-level People’s Committees shall establish, and direct the operation of, Labor Arbitration Councils under the guidance in this Circular.

3. Problems arising in the course of implementation should be reported to the Ministry of Labor, War Invalids and Social Affairs for prompt settlement.